FOIA Update: Significant New Decisions

Significant New Decisions

In a case involving fifteen classified documents which "described or authorized CIA covert operations . . . which were approved by President Reagan," U.S. District Court Judge June L. Green ordered the documents disclosed, holding that Exemption 1 could not protect them. Stating that "[p]ublicly known information cannot 'reasonably' be expected to damage national security, particularly when the Government has officially acknowledged the information," Judge Green held that public statements by senior Executive Branch officials and Members of Congress constituted an official acknowledgment of "covert action" by the CIA against the Government of Nicaragua, which in her judgment precluded the documents' continued classification. The CIA had argued that Exemption 1 was properly applicable to protect certain "special activities." However, Judge Green ruled that published statements by the President, the White House Deputy Press Secretary and the CIA Director, along with a news release from the Senate Select Committee on Intelligence, constituted "sufficient evidence of 'official acknowledgment' of covert action in Nicaragua to warrant release" because these statements were of such a "deliberate" and "conscious" nature as to place almost all of the CIA's actions in the public domain. The decision is being appealed.

Relying on the Supreme Court's decision in Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979), U.S. District Court Judge Gerhard A. Gesell upheld the temporary application of the "commercial privilege" under Exemption 5 to protect internal documents containing historical cost data used by the Department of the Army to prepare its bid in a "contracting out" procurement -- the process by which private firms compete with an agency for award of a contract to provide services presently performed "in-house." The Army successfully argued that release of its underlying cost information would enable an informed bidder to better predict the Army's bid, which would not only "chill competition and place the Army at a competitive disadvantage," but might also discourage the use of innovative cost-cutting techniques by firms attempting to underbid the Army. Because the Army intended to release the records after the award was made, Judge Gesell found that the "ultimate purpose of public disclosure envisioned by FOIA [was] achieved while the agency's need to protect its commercial information for a short period [was] recognized." The disclosure of similar documents at other Army bases, he also ruled, did not constitute a waiver in this case. The requester has appealed.

The U.S. Court of Appeals for the Eleventh Circuit has held that the protections of Exemptions 7(C) and 7(D) are fully applicable to employee witnesses in an OSHA investigation, even where their identities can he obtained legitimately through means other than the FOIA. The requester in this case already had the text of several witnesses's statements, and in discovery had learned of their identities, but it sought through the FOIA to match them together. Although OSHA investigators expressly promised confidentiality to the witnesses, the district court had ruled that once their identities were obtained through civil discovery, they lost all protection under Exemptions 7(C) and 7(D). The Eleventh Circuit disagreed, however, holding that even if the names of the employees were available, their privacy would be invaded by the "linking" of them with their respective witness statements, which could cause "problems at their jobs and with their livelihoods."

Adopting an expansive interpretation of Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en banc), U.S. District Court Judge Norma Holloway Johnson has held that Exemption 2 can properly be invoked to withhold internal "crediting plans" -- tailored questions and ratings of responses designed by the Customs Service to assess job applicants' skills. Finding that such plans consist of instructions to agency personnel that are related solely to the agency's merit promotion process and that their release would circumvent agency regulations designed to prevent unfair advantage to any applicant, Judge Johnson ruled that the records met both prongs of the Crooker test. In holding the Crooker protection of Exemption 2 properly applicable to even such non-law enforcement records, Judge Johnson declared that the "circumvention" contemplated by the Crooker test is not limited to the "hindrance of a law enforcement agency's investigatory activities." The requester has appealed.

Seegull Manufacturing Co. v. NLRB, 741 F.2d 882 (6th Cir. 1984).

In a rare display of judicial irritation at the appellate level, the U.S. Court of Appeals for the Sixth Circuit sharply criticized the NLRB for its practice of denying access to records of its closed investigative files for a six-month "buffer period." The criticism was provoked during the Sixth Circuit's review of a district court's award of attorney's fees and costs to Seegull Manufacturing Co., which had sought access to records compiled by NLRB during an unfair labor practice investigation of it. The NLRB initially refused to disclose the records on the basis of its internal six-month "buffer period" policy, but ultimately released the records. Challenging the attorney's fees award on appeal, the NLRB argued, among other things, that its refusal to release the records pursuant to Exemption 7(A) had "a reasonable basis in law." Quite to the opposite, however, the Sixth Circuit found the "buffer period" policy to be contrary to established FOIA case law and characterized the NLRB's reliance upon its "self-serving guidelines" as "an arrogant bureaucratic display."